James Forsyth v. Department of the Treasury ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES J. FORSYTH, DOCKET NUMBER
Appellant, NY-0752-16-0246-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: March 15, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Susan F. Tylar, Esquire, Garden City, New York, for the appellant.
Navid Mehrjou, Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
chief administrative judge’s rulings during either the course of the appeal or the
initial decision were not consistent with required procedures or involved an abuse
of discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 On May 19, 2015, the agency assigned the appellant, a GS-08 Contact
Representative for the agency’s Internal Revenue Service, to take incoming
telephone calls from taxpayers. Initial Appeal File (IAF), Tab 1; Tab 8,
Subtab 4b; Tab 33 at 4. Before he received his first telephone call of the day, the
appellant called the Howard Stern radio show using his personal cell phone and
was placed on hold. IAF, Tab 33 at 4. At 8:00 a.m., the appellant began
answering taxpayer telephone calls and, at 10:09 a.m., the show apparently took
the appellant off hold and, as a result, began to broadcast audio of the appellant
on a telephone call with a taxpayer. Id. During the broadcast, he revealed the
taxpayer’s telephone number and the amount of back taxes due to the
Government. Id. Sometime after Mr. Stern began to yell the appellant’s name
into the telephone to get his attention, the appellant placed the taxpayer on hold
to speak with the cast of the show. Id.3
¶3 In this appeal of the appellant’s subsequent removal based on the charge of
disclosure of a taxpayer’s personally identifiable information (PII), the appellant
stipulated to the above facts, as well as to the accuracy and veracity of the audio
file of the above-described broadcast, which the agency submitted as an exhibit in
this matter. Id.; IAF, Tab 8, Subtabs 4a-4d; Tab 31 (audio recording of Howard
Stern Show, May 19, 2015). After holding a hearing, the chief administrative
judge issued an initial decision affirming the removal. IAF, Tab 40, Initial
Decision (ID). He sustained the agency’s charge, citing the appellant’s
stipulations to the specified misconduct, and determined that the appellant failed
to show that the agency violated his right to due process, finding that the agency
gave him proper notice of the factors it considered in selecting the penalty and
did not consider any ex parte information in deciding to remove him. ID at 9-21.
The chief administrative judge further found that the agency established a clear
nexus between the appellant’s misconduct and the efficiency of the service, and
that, although harsh, the penalty did not fall outside the bounds of reasonableness .
ID at 21-37.
¶4 The appellant has filed a petition for review in which he challenges th e
reasonableness of the penalty, citing the apparent death of a child and the end of
an engagement as mitigating factors. 3 Petition for Review (PFR) File, Tab 1 at 4.
The agency responds in opposition to the appellant’s petition for review. PFR
File, Tab 3.
3
The appellant has not challenged the chief administrative judge’s findings that the
agency proved the charge and nexus and that the appellant failed to prove his due
process claim, and we discern no basis to disturb th ese findings on review.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The chief administrative judge properly concluded that the removal penalty does
not exceed the bounds of reasonableness.
¶5 When the agency’s charge is sustained, the Board will review the
agency‑imposed penalty to determine if the agency considered all of the relevant
factors and exercised management discretion within tolerable limits of
reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20
(2001). The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
potential for the employee’s rehabilitation, the consistency of the penalty with the
agency’s table of penalties, the consistency of the penalty with those imposed on
other employees for the same or similar offense, and any mitigating
circumstances surrounding the offense. Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981). Not all of the factors will be pertinent in every
instance, and therefore, the relevant factors must be balanced in each case to
arrive at the appropriate penalty. Id.¶6 Here, the chief administrative judge reviewed the pertinent aggravating and
mitigating Douglas factors, first noting the direct relation of the appellant’s
misconduct to his duties and responsibilities, and the “utter recklessness” of his
behavior. ID at 23-25. Regarding the consistency of the penalty with those
imposed upon others, the chief administrative judge found that the appellant’s
misconduct was significantly different from the other identified employees who
violated the agency’s strictures against the disclosure of PII, in that those
employees had electronically transmitted information containing PII in an
unauthorized manner but to individuals authorized to receive such information,
whereas here, the appellant verbally broadcasted a taxpayer’s PII nationwide on a
satellite radio program. ID at 26-27. The chief administrative judge also cited
the notoriety of the offense, noting the potential size of the audience exposed to
the taxpayer’s PII, the news coverage of the event, and the controversial nature of
5
the show itself. ID at 27-28; see Black v. Department of the Air Force,
29 M.S.P.R. 133, 137 (1985) (finding that media attention concerning an
appellant’s misconduct supported removal); Douglas, 5 M.S.P.R. at 305 (stating
that the notoriety of the offense or its impact upon the agency’s reputation is a
factor to be considered). Regarding the agency’s table of penalties, which set
forth a penalty range of a written reprimand to a 14-day suspension for the
careless, reckless, or negligent disclosure of PII, IAF, Tab 8, Subtab 4f at 11, the
chief administrative judge found that, in light of the egregiousness of the
appellant’s misconduct, the deciding official did not abuse her discretion in
deciding to exceed the table of penalties and remove the appellant, ID at 28 -31.
¶7 As for the effect of the appellant’s misconduct on his supervisors’
confidence and his potential for rehabilitation, the chief administrative judge
found the appellant’s expressed contrition hard to reconcile with the record. ID
at 31. For example, rather than immediately summoning his supervisor, as he had
asserted in his oral reply to the agency’s notice of proposed removal, the
appellant instead “gleefully” kept talking on the air, identifying himself as a
Government employee even after it became obvious that he had broadcast the
taxpayer’s PII, and then denying that he had done so to the taxpayer herself even
though she told him that her friends had alerted her to the disclosure via te xt
message. ID at 31-32; IAF, Tab 31. The chief administrative judge also found
the appellant’s contrition “half-hearted at best,” in part because, when he called
the show after the incident to ask that they not rebroadcast the exchange, he also
asked for a tour of the show’s broadcast studio. ID at 32. He further found that
the appellant was clearly on notice that he should not disclose taxpayers’ PII, that
his 8 years of service without discipline was not significantly mitigating under
the circumstances, and that, because the record showed that the deciding official
duly considered the relevant facts and pertinent Douglas factors, the record
showed no reason for him not to defer to the agency’s choice of penalty. ID
at 33-37.
6
¶8 On review, the appellant asserts that the fact that he lost a child and ended
his engagement should be considered as mitigating factors. PFR File, Tab 1
at 3‑4. However, he does not provide any details regarding the circumstances
surrounding these events or how they relate to his misconduct, except to state that
he “sought happiness in [his] subconscious by calling into this show to bring back
[his] smile.” Id. at 4. The record shows that the appellant did not include this
contention in his oral reply to the agency’s notice of proposed removal, IAF,
Tab 8, Subtab 4c, nor does it appear that he raised this issue in his appeal below.
Thus, the record reflects that neither the deciding official nor the chief
administrative judge failed to consider these mitigating circumstances when
considering the penalty, and the appellant therefore has set forth no basis to
disturb the initial decision. Furthermore, the Board generally will not consider an
argument raised for the first time in a petition for review absent a s howing that it
is based on new and material evidence not previously available despite the party ’s
due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980). The appellant makes no such showing here.
¶9 The appellant also challenges the chief administrative judge’s conclusion
that he failed to show that he was subjected to disparate treatment by vaguely
claiming that “others have committed crimes knowingly and kept their jobs.”
PFR File, Tab 1 at 4. However, we agree with the well‑reasoned and explained
findings of the chief administrative judge that the appellant failed to show that
there was enough similarity between his misconduct and that of his purported
comparators to lead a reasonable person to conclude that the agency treated
similarly situated persons differently. ID at 25-28. Specifically, the appellant
conceded that he disclosed the taxpayer’s PII—the telephone number and amount
of tax owed—on a nationwide satellite radio program, whereas his purported
comparators merely transmitted PII via an insecure method but to authorized
recipients. IAF, Tab 26 at 5. We find, under these circumstances, that the chief
7
administrative judge properly concluded that the appellant failed to show that
these individuals committed the same or similar offense for purposes of a
disparate treatment analysis. 4 ID at 25-28; see Douglas, 5 M.S.P.R. at 305.
¶10 Finding that the appellant has shown no error in the deciding official’s and
the chief administrative judge’s analyses under Douglas, we affirm the initial
decision.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4
In adjudicating the appellant’s disparate penalty claim, the chief administrative judge
cited to Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 5, 12, 15 (2010).
ID at 25 & n.19. In Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 10-17, we
overruled Lewis to find that, when analyzing disparate penalty claims, broad similarity
between employees is insufficient to establish that they are appropriate comparators,
and to reaffirm that the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees who engaged in the same or similar offenses d ifferently.
Nevertheless, the chief administrative judge’s reference to the standard set forth in
Lewis was not prejudicial in this case because he properly found that the appellant
failed to meet even that less onerous standard. ID at 27.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.